Exhibit 10.42
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
EMBRAER 190
PURCHASE AGREEMENT COM 0028-06
BETWEEN
EMBRAER - EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
AND
COPA HOLDINGS, S.A.
INDEX
ARTICLE PAGE
------- ----
1. DEFINITIONS.......................................................... 5
2. SUBJECT.............................................................. 8
3. PRICE................................................................ 8
4. PAYMENT.............................................................. 8
5. DELIVERY............................................................. 9
6. CERTIFICATION........................................................ 10
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP................................. 10
8. STORAGE CHARGE....................................................... 12
9. DELAYS IN DELIVERY................................................... 12
10. INSPECTION AND QUALITY CONTROL....................................... 14
11. CHANGES.............................................................. 14
12. WARRANTY............................................................. 16
13. PRODUCT SUPPORT PACKAGE.............................................. 16
14. ASSIGNMENT........................................................... 16
15. RESTRICTIONS AND PATENT INDEMNITY.................................... 18
16. MARKETING PROMOTIONAL RIGHTS......................................... 17
17. TAXES................................................................ 19
18. APPLICABLE LAW....................................................... 17
19. JURISDICTION......................................................... 18
20. TERMINATION.......................................................... 18
21. OPTION FOR THE PURCHASE OF ADDITIONAL AIRCRAFT....................... 19
22. INDEMNITY............................................................ 21
23. NOTICES.............................................................. 21
24. CONFIDENTIALITY...................................................... 22
25. SEVERABILITY......................................................... 22
26. NON-WAIVER........................................................... 22
27. INTEGRATED AGREEMENT................................................. 22
28. NEGOTIATED AGREEMENT................................................. 23
29. WAIVER OF JURY TRIAL................................................. 23
30. WAIVER OF IMMUNITY................................................... 23
31. PAYMENTS IN US DOLLARS............................................... 23
32. COUNTERPARTS......................................................... 24
33. ENTIRE AGREEMENT..................................................... 24
ATTACHMENTS
"A" - AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
"B" - FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
"C "- WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
"D" - PRICE ESCALATION FORMULA
"E" - **Material Redacted**
"F" - **Material Redacted**
"G" - **Material Redacted**
"H" - PERFORMANCE GUARANTEE
PURCHASE AGREEMENT COM 0028-06
THIS AGREEMENT IS ENTERED INTO THIS ____ DAY OF FEBRUARY, 2006, BY AND BETWEEN
EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A. AND COPA HOLDINGS, S.A., FOR
THE PURCHASE AND SALE OF EMBRAER AIRCRAFT.
THE SALE COVERED BY THIS AGREEMENT SHALL BE GOVERNED SOLELY BY THE TERMS AND
CONDITIONS HEREIN SET FORTH, AS WELL AS BY THE PROVISIONS SET FORTH IN THE
ATTACHMENTS HERETO.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS SIGNED BY AN
AUTHORIZED OFFICER OF COPA HOLDINGS, S.A. AND EXECUTED BY TWO AUTHORIZED
OFFICERS OF EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A.
1. DEFINITIONS
For the purpose of this Agreement, the following definitions are hereby adopted
by the Parties and, unless otherwise expressly provided, the singular includes
the plural, the masculine includes the feminine and neutral genders:
1.1 "Actual Delivery Date" shall mean, with respect to each Aircraft,
the date on which Buyer obtains title to
that Aircraft in accordance with Article 7.
1.2 "AD's" shall mean Airworthiness Directives issued
by either the CTA or the Air Authority, in
connection with and with respect to the
Aircraft.
1.3 "Agreement" or "Purchase Agreement" shall mean this Purchase Agreement
DCT-.../2006 together with all attachments,
supplements and exhibits hereto, all as
modified and amended from time to time.
1.4 "Air Authority" shall mean the Unidad Administrativa
Especial de Aviacion Civil ("UAEAC") of
Colombia, or a successor from time to time
charged with the administration of civil
aviation in Colombia.
1.5 "Aircraft Basic Price" shall mean the Aircraft price, as defined in
Article 3.1.
1.6 "Aircraft Purchase Price" shall mean, in respect of an Aircraft, the
Aircraft Basic Price, escalated up to the
Contractual Delivery Date of such Aircraft
in accordance with and by application of the
Escalation Formula.
1.7 "Aircraft" shall mean the EMBRAER 190LR aircraft
(certification designation ▇▇▇ ▇▇▇-▇▇▇ ▇▇)
(▇▇▇ "EMBRAER 190 Aircraft"), manufactured
by Embraer according to the
Preliminary Technical Description
PTD-190/195-Rev.5 dated March 2005, (which,
although not attached hereto, are
incorporated herein by reference) and the
Aircraft Specific Configurations, Finishing
and Registration Marks described in the
Attachment "A", for sale to Buyer pursuant
to this Agreement, equipped with two engines
GE CF-34-10E6A1, manufactured by General
Electric Company, all cases in the condition
and configuration required hereunder, and
shall include Firm Aircraft and Option
Aircraft unless the context requires
otherwise.
1.8 "Buyer" shall mean Copa Holdings, S.A., a company
with its address c/o Ave. Principal y Ave.
Rotonda, Complejo Business Park, North
Tower, Costa del Este, Panama City, Rep of
Panama.
1.9 "Business Day(s)" shall mean a day other than a Saturday or
Sunday on which banks are open for business
in Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo, Rio de
Janeiro, New York and Panama.
1.10 "Contractual Delivery Date" shall mean the delivery date referred to in
Article 5.
1.11 "CTA" shall mean the Aerospace Technical Center of
the Brazilian Ministry of Aeronautics.
1.12 "Day(s) shall mean natural calendar day(s).
1.13 "Embraer" shall mean Embraer - Empresa Brasileira de
Aeronautica S.A., a Brazilian corporation
with its principal place of business at ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ - Putim, Sao
▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo, Brazil.
1.14 "Escalation Formula" shall mean the escalation formula contained
in Attachment "D".
1.15 "Firm Aircraft" shall mean the firm order Aircraft referred
to in Article 2.1
1.16 "Initial Deposit" shall mean the initial non-refundable
deposit referred to in Article 4.1.1.
1.17 "Major Changes" shall mean the changes to the design or
approved specification of the Aircraft, as
defined in Article 11.2.2.
1.18 "Mandatory Service Bulletins" shall mean the service bulletins applicable
to the Aircraft, which are issued by Embraer
to implement the AD's
referred to under Article 11.4.
1.19 "Minor Changes" shall mean the changes to the design of the
Aircraft defined as per the terms and
conditions of Article 11.2.1.
1.20 "Option Aircraft Basic Price" shall mean the unit price of the Option
Aircraft, as per the terms and conditions of
Article 21.2.
1.20 "Option Aircraft Initial Deposit" shall mean the initial deposit referred to
under Article 21.1.
1.21 "Option Aircraft Purchase Price" shall mean the Option Aircraft Basic Price
escalated in accordance with and by
application of the Escalation Formulas
**Material Redacted** as per the terms and
conditions of Article 21.3.
1.22 "Option Aircraft" shall be the additional Aircraft that Buyer
shall have the option to purchase as per the
terms of Article 21.
1.23 "Parties" shall mean Embraer and Buyer.
1.24 "Product Support Package" shall mean the products and Services to be
provided by Embraer as per Article 13.
1.25 "Scheduled Inspection Date" shall mean the date on which a certain
Aircraft hereunder is available for
inspection and acceptance by and subsequent
delivery to Buyer, as per the terms and
conditions of Article 7.1.
1.26 "Services" shall mean the familiarization and on-site
support for the Aircraft, part of the
Product Support Package, as specified in
Attachment "B".
1.27 "Technical Publications" shall mean the technical documentation
pertaining and related to the Aircraft as
listed in Exhibit 1 to Attachment "B".
1.28 "USD" or "US$" shall mean the legal currency of the United
States of America.
1.29 "Working Day(s)" shall mean a day, other than Saturday,
Sunday, or holiday, on which Embraer in Sao
▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇, Brazil is open for
business.
References to Articles or Attachments in the main body of this Purchase
Agreement shall be deemed to be references to Articles of or Attachments to this
Agreement, respectively, except as the context requires otherwise.
2. SUBJECT
Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery
of five (5) Firm Aircraft;
2.2 Embraer shall provide to Buyer the Services and the Technical Publications;
and
2.3 Buyer shall have the option to purchase up to ten (10) Option Aircraft, in
accordance with Article 21.
3. PRICE
3.1 Buyer agrees to pay Embraer, in United States dollars, the Aircraft Basic
Price of USD **Material Redacted** for each Aircraft **Material Redacted**.
3.2 The Services and Technical Publications are to be provided **Material
Redacted** to Buyer. Additional technical publications as well as other
services shall be billed to Buyer in accordance with Embraer's rates
prevailing at the time Buyer places a purchase order for such additional
technical publications or other services.
3.3 The Aircraft Basic Price shall be escalated according to the Escalation
Formula. Such price as escalated shall be the Aircraft Purchase Price and
it will be provided to Buyer **Material Redacted** prior to each Aircraft
Contractual Delivery Date.
4. PAYMENT
4.1 The prices specified in the previous Article shall be paid by Buyer by wire
transfer in immediately available United States dollars funds, to a bank
account to be timely informed by Embraer to Buyer, as follows:
4.1.1 A non-refundable Initial Deposit of **Material Redacted** per Firm
Aircraft is due and payable **Material Redacted**.
4.1.2 A **Material Redacted** percent **Material Redacted**%) **Material
Redacted** progress payment in respect of each Aircraft **Material
Redacted**, is due and payable **Material Redacted** prior to the
relevant Aircraft Contractual Delivery Date**Material Redacted**.
4.1.3 A **Material Redacted** progress payment in respect of each Aircraft
**Material Redacted**, is due and payable **Material Redacted** prior
to such relevant Aircraft Contractual Delivery Date**Material
Redacted**.
4.1.4 A **Material Redacted** progress payment in respect of each Aircraft
**Material Redacted**, is due and payable **Material Redacted** prior
to each relevant Aircraft Contractual Delivery Date**Material
Redacted**.
4.1.5 The balance of the Aircraft Purchase Price in respect of an Aircraft,
shall become due and payable upon acceptance of such Aircraft by
Buyer.
4.2 Late Payments:
In respect of any amounts which are or may become due and payable pursuant
to Articles 4.1.1 through and including 4.1.4 which amounts are not paid
within **Material Redacted** and payable as set forth in Article 4.1,
interest shall accrue on the relevant amount at the rate of **Material
Redacted** per annum (the "Default Rate") following the Due Date and ending
on the date the relevant amount is received by EMBRAER In respect of
accounts which may become due and payable pursuant to Article 4.1.5,
interest shall accrue thereon at the rate set forth herein above. Without
prejudice to Embraer's rights set forth in Article 4.3 below, interest
accrued will be invoiced by Embraer on a monthly basis, beginning one month
after **Material Redacted**, and payment thereof shall be made by Buyer in
accordance with the instructions contained therein.
4.3 Termination for failure to make payments:
Without prejudice to the payment of interest on late payments set forth
above, should Buyer fail to make any payment on or before the due date,
Embraer shall have the right, at its sole discretion, to either (i)
postpone, the relevant Aircraft Contractual Delivery Date; or (ii)
terminate this Agreement in relation to the affected Aircraft in accordance
with Article 20.3, if such failure shall not have been cured within
**Material Redacted** Days after the date on which Embraer has issued a
written notice to Buyer of such failure.
4.4 Net payments:
4.4.1 All payments to be made by Buyer under this Agreement shall be made
without set-off or withholding whatsoever (except for Embraer Taxes,
as defined in Article 17). If Buyer is obliged by law to make any
deduction or withholding from any such payment (other than for Embraer
Taxes), the amount due from Buyer in respect of such payment shall be
increased to the extent necessary to ensure that, after the making of
such deduction or withholding, Embraer receives a net amount equal to
the amount Embraer would have received had no such deduction or
withholding been required to be made.
4.5 Payment Date
Unless otherwise agreed by the Parties in writing, payment of the amounts
referred in Articles 4.1.2, 4.1.3, and 4.1.4 shall be made by Buyer on
**Material Redacted** Day of the month on which each of such payments is
due.
5. DELIVERY
5.1 Aircraft: Subject to payment in accordance with Article 4 and the
provisions of Articles 7 and 9, the Aircraft shall be tendered by Embraer
to Buyer in the condition required hereunder, by means of a written notice,
for inspection, acceptance and subsequent delivery in Fly Away Factory
condition (i.e., Ex works (Incoterms 2000), with the
Aircraft to be flown away by Buyer), at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao
Paulo, Brazil, according to the following schedule:
Aircraft Number Contractual Delivery Date
--------------- -------------------------
1 **Material Redacted**
2 **Material Redacted**
3 **Material Redacted**
4 **Material Redacted**
5 **Material Redacted**
6. **Material Redacted**
6. CERTIFICATION
6.1 By **Material Redacted**, the EMBRAER 190LR model aircraft shall be type
certified by the Brazilian Airworthiness Authority (CTA) and type validated
by (a) USA FAA in accordance with 14 CFR FAR 25 Amendment 25-84 effective
10 July 1995 and (b) by the Air Authority, provided that any items that are
under Buyer / an operator's regulatory responsibility pursuant to the Air
Authority operational requirements and are not otherwise required to be
provided by Embraer under this Agreement, shall be Buyer's responsibility.
6.2 The Aircraft shall be delivered to Buyer in conformity with **Material
Redacted** and with the requirements set forth herein. Embraer will provide
Buyer with an export certificate of airworthiness issued by CTA, which will
certify that, as of the date of its issuance, the Aircraft has been
inspected and found to conform in all respects to the CTA / UAEAC approved
Type Design and in a condition **Material Redacted**. The condition of the
Aircraft on delivery and the documentation delivered with the Aircraft,
including the above mentioned export certificate of airworthiness, shall
**Material Redacted**. Subject to the above, it shall be Buyer's
responsibility to obtain such certificate of airworthiness for and the
registration of the Aircraft, at Buyer's sole expense. **Material
Redacted**.
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP
7.1 Unless Buyer is notified of any delay in delivery in accordance with and in
conformity with the terms and conditions of this Agreement, the Aircraft
shall be delivered in accordance with all of the provisions and schedules
specified in Article 5 and otherwise in such condition as required under
this Agreement. Embraer shall give Buyer **Material Redacted** Days advance
facsimile notice of the date on which Embraer considers that each Aircraft
will be ready for inspection, acceptance and subsequent delivery. Upon
successful completion of ground and flight tests performed by Embraer,
Buyer will receive a written confirmation of the Scheduled Inspection Date,
on which date Buyer shall promptly start inspecting such Aircraft.
7.2 Buyer shall have up to **Material Redacted** Days, as necessary, to inspect
and conduct an acceptance flight of each Aircraft prior to its delivery.
Embraer will provide the fuel
and insurance for the Aircraft's acceptance flight in accordance with
Embraer insurance policy.
7.3 If Buyer finds an Aircraft acceptable, Buyer shall promptly pay any and all
amounts then due and payable pursuant to this Agreement, including but not
limited to all amounts referred to under Articles 4.1, 4.2, 7.8 and 8 as
applicable and accept delivery of such Aircraft, whereupon the necessary
title and risk transfer documents shall be executed and exchanged in order
to effect title transfer, subject to all express warranties set forth in
this Agreement that by their terms survive delivery.
7.4 Buyer may decline to accept an Aircraft, which does not materially comply
with the requirements of Article 6, the specification set forth in
Attachment "A" or is not in an airworthy condition. For the purposes of
**Material Redacted** an Aircraft shall be deemed not to be materially
compliant when one or more of the Aircraft characteristics identified in
Article 11.2.1 **Material Redacted** are adversely affected by such
non-compliance vis-a-vis the specification set forth in Attachment A.
7.5 If Buyer declines to accept an Aircraft, Buyer shall immediately give
Embraer written notice including its reasons for such refusal and Embraer
shall have **Material Redacted** Days, commencing on the first Working Day
after receipt of such notice, to take all necessary actions in order to
resubmit the Aircraft to Buyer for re-inspection.
7.6 Buyer shall be allowed **Material Redacted** Days to re-inspect the
Aircraft, starting immediately upon receipt of notice from Embraer that all
necessary actions were taken. The period required for inspection as well as
the one mentioned in Article 7.5 shall not be considered as part of the
**Material Redacted** Day grace period provided for in Article 9.2.1. In
the event Buyer declines to accept an Aircraft after **Material Redacted**,
the Parties shall convene promptly after final refusal to accept the
Aircraft in order to negotiate possible solutions. If within **Material
Redacted** Days counted from the date in which Embraer receives notice of
such final refusal to accept the Aircraft, Embraer and Buyer fail to reach
an agreement, then **Material Redacted**.
7.7 Should Buyer fail to perform the acceptance and accept transfer of title to
an Aircraft **Material Redacted** provided for and in accordance with this
Article 7, Embraer shall be entitled, at its reasonable discretion, to
either re-negotiate the terms of this Agreement with Buyer or terminate
this Agreement with regard to the affected Aircraft pursuant to Article
20.3. **Material Redacted**.
7.8 Notwithstanding the provisions of Article 7.7 and in addition to Embraer's
rights pursuant to Article 20.3 and **Material Redacted** should Buyer fail
to perform the acceptance and transfer of title to the Aircraft within the
time period specified in Articles 7.2, 7.5 and 7.6, as applicable,
**Material Redacted** interest will accrue at the rate of **Material
Redacted** over the unpaid balance of the relevant Aircraft Purchase Price,
prorated from the **Material Redacted**. Without prejudice to Embraer's
rights set forth in Article 7.7, interest accrued will be invoiced by
Embraer on a monthly basis, beginning one month after the date on which the
Aircraft acceptance or transfer of title
should have been performed, and payment thereof shall be made by Buyer in
accordance with the instructions contained therein.
8. STORAGE CHARGE
8.1 A storage charge equal to USD**Material Redacted** per Day shall be charged
by Embraer to Buyer commencing on:
8.1.1 Buyer's failure to perform inspection or re-inspection of an
Aircraft, per the date or time period properly specified in writing by
Embraer, according to Articles 5 and/or 7, as applicable.
8.1.2 Buyer's acceptance of an Aircraft when Buyer defaults in the
fulfillment of any payment due and in taking title to such Aircraft
promptly thereafter.
8.1.3 Buyer's failure to remove an Aircraft from Embraer's facilities after
title transfer has occurred.
8.2 If however, Buyer notifies Embraer in writing **Material Redacted** Days in
advance of its expected delay in the performance of its obligations set
forth in Articles 8.1.1, 8.1.2 and 8.1.3, the storage charge shall commence
on the **Material Redacted** Day after the occurrence of the events set
forth in Articles 8.1.1, 8.1.2 or 8.1.3, as applicable.
8.3 In the event that an Aircraft Contractual Delivery Date must be extended by
Embraer from that which is designated in Article 5, due to Buyer's failure
to perform any action or provide any information contemplated by this
Agreement other than the ones specified in Article 8.1, the storage charge
shall commence on the **Material Redacted** Day after the Contractual
Delivery Date relative to such Aircraft.
8.4 Buyer shall pay the storage charge as set forth in Articles 8.1. or 8.3, as
applicable, in United States dollars, per each month of delay or prorated
for part thereof, within **Material Redacted** Days after the presentation
of each invoice by Embraer.
9. DELAYS IN DELIVERY
9.1 Excusable Delays:
9.1.1 Embraer shall not be held liable or be found in default for any
delays in the delivery of an Aircraft or in the performance of any act
to be performed by Embraer under this Agreement, resulting from, but
not restricted to, the following events or occurrences (hereinafter
referred to as "Excusable Delays"): (a) force majeure (including, but
not limited to acts of God, war or state of war, civil war,
insurrection, fire, accident, explosion, flood, act of government,
requisition, strike, labor disputes causing cessation or interruption
of work, including but not limited to walkouts, sick-outs, protests or
slowdowns), (b) inability despite due and all commercially reasonable
efforts to procure any materials, equipment, accessories, parts or
means of transport, or (c) any delay resulting from any
failure by Buyer to perform any action or provide any information
contemplated by this Agreement or, (d) delays resulting from any other
cause to the extent it is beyond Embraer's control or does not result
from Embraer's fault or negligence.
9.1.2 Within **Material Redacted** Days after the occurrence of any
Excusable Delay, Embraer undertakes to send a written notice to Buyer
including a description of the details involved and an estimate of the
effects expected upon the timing of the performance of its contractual
obligations.
9.1.3 Any such delays shall extend the time for delivery of an Aircraft
**Material Redacted** by the same number of Days required for the
cause of delay to be remedied, subject in all cases to the provisions
of Article 9.1.4. Embraer undertakes to use all commercially
reasonable efforts to avoid or remove any cause of Excusable Delay and
to minimize its effect on the Contractual Delivery Date of an Aircraft
**Material Redacted**.
9.1.4 If the cause of such Excusable Delay is such as to last longer than
**Material Redacted** Days or to render the performance of this
Agreement impossible, then Buyer shall have the right to terminate
this Agreement without liability to either Party, except as provided
for in Article 20.2.
9.1.5 **Material Redacted**.
9.2 Non-Excusable Delays:
9.2.1 If the delivery of an Aircraft is delayed for any reason that does
not constitute an Excusable Delay (hereinafter a "Non-excusable
Delay") by more than **Material Redacted** Days after the Contractual
Delivery Date for such Aircraft, Buyer will be entitled to claim from
Embraer and Embraer shall pay to Buyer liquidated damages equal to
**Material Redacted**, up to the date that the Aircraft is available
for inspection and acceptance by, and delivery to Buyer in conformity
herewith, it being understood that such liquidated damages will not,
in any event, exceed **Material Redacted** and that it will only be
due and payable by Embraer to Buyer within five (5) Business Days
after Buyer pays to Embraer the total Aircraft Purchase Price,
**Material Redacted**.
9.2.2 Upon the occurrence of any event, which constitutes a Non-excusable
Delay in delivery of an Aircraft, Embraer undertakes to send a written
notice to Buyer, within **Material Redacted**, including a description
of the delay and an estimate of the effects expected upon the delivery
of the Aircraft.
9.2.3 It is agreed between the Parties that if, with respect to a delayed
Aircraft, Embraer does not receive a claim for liquidated damages
pursuant to Article 9.2.1, from Buyer, within **Material Redacted**
Days after the Actual Delivery Date of such Aircraft, Buyer shall be
deemed to have fully waived its right to such liquidated damages.
9.2.4 **Material Redacted**
9.3 **Material Redacted**Delay Due to Loss or Structural Damage of the
Aircraft:
Should any Aircraft be destroyed or damaged before acceptance to the extent
that it becomes commercially useless, Buyer may, **Material Redacted**
either take a replacement Aircraft at a later delivery date to be agreed by
the Parties, or terminate this Agreement with respect to such Aircraft by
notice to Embraer given in accordance with Article 23, without any
liability to either Party. If this Agreement is terminated **Material
Redacted**, such termination shall discharge the Parties from all
obligations and liabilities of the Parties hereunder with respect to such
Aircraft and Services, **Material Redacted**.
10. INSPECTION AND QUALITY CONTROL
10.1 In order to effect inspection and acceptance of the Aircraft as set forth
in Article 7, Buyer shall send one or more authorized representatives to
Embraer's facilities in order to verify that the Aircraft was manufactured
in accordance with the procedures, specifications and other requirements
specified in this Agreement and according to all applicable quality control
standards.
10.2 Buyer shall communicate to Embraer the names of its authorized
representatives, by means of written notice, at least thirty (30) Days
prior to the earliest delivery date specified in Article 5.
10.3 Such representatives, or other representatives indicated by Buyer, shall be
authorized and duly empowered to sign the acceptance and documents and
accept delivery of the Aircraft pursuant to Article 7.
10.4 For the purposes subject of this Article 10, Embraer shall provide
communication facilities (telephone and facsimile) for Buyer's authorized
representatives, as well as the necessary tools, measuring devices, test
equipment and technical assistance as may be necessary to perform
acceptance tests.
10.5 Buyer's authorized representatives shall observe Embraer's administrative
rules and instructions while at Embraer's facilities.
10.6 Buyer's authorized representative shall be allowed exclusively in those
areas related to the subject matter of this Article 10 and Buyer
furthermore agrees to hold harmless Embraer from and against all and any
kind of liabilities in respect to such representatives, for whom Buyer is
solely and fully responsible under all circumstances and in any instance.
11. CHANGES
11.1 In addition to the requirements of Article 6, each Aircraft will comply
with the standards defined in Attachment "A" and shall incorporate all
modifications which are classified as AD's mandatory by CTA or the Air
Authority as provided in Article 11.4, or those agreed upon by Buyer and
Embraer in accordance with this Article.
11.2 The Parties hereby agree that changes can be made by Embraer in the design
of the Aircraft, the definition of which and its respective classification
shall be in compliance to the Aircraft type specification, as follows:
11.2.1 Minor Changes: defined as those modifications which shall not
adversely affect the Aircraft in any of the following characteristics:
11.2.2 **Material Redacted**Major Changes: defined as those modifications
which affect at least one of the topics mentioned in Article 11.2.1.
11.3 Embraer shall have the right, but not the obligation (except to the extent
required by the CTA or applicable Aviation Authorities), to incorporate
Minor Changes in the Aircraft still in the production line at its own cost,
without the prior consent of Buyer.
11.4 Embraer shall convey those Major Changes that are classified as AD's by
means of service bulletins approved by the Air Authority and/or CTA, as
appropriate. Service bulletins that implement such ADs shall be referred to
as Mandatory Service Bulletins. Embraer shall incorporate Mandatory Service
Bulletins as follows:
11.4.1 Compliance required before Actual Delivery Date: Embraer shall
incorporate Mandatory Service Bulletins at Embraer's expense in a
reasonable period of time if the compliance time for such Mandatory
Service Bulletins is before the Actual Delivery Date. Embraer shall
not be liable for **Material Redacted** resulting from incorporation
of Mandatory Service Bulletins when the Aircraft has already passed
the specific production stage affected by the incorporation of said
change.
11.4.2 Compliance required after Actual Delivery Date: During the
applicable Aircraft warranty coverage periods as specified in
Attachment "C", Embraer shall provide parts kits for Mandatory Service
Bulletins that are issued either (i) before the relevant Aircraft's
Actual Delivery Date but with a compliance time after such date or
(ii) after the relevant Aircraft's Actual Delivery Date. Such kits
shall be provided **Material Redacted**, excluding **Material
Redacted** labor charges for installation of such Mandatory Service
Bulletins**Material Redacted** Embraer shall not be liable for any
downtime of delivered Aircraft that may be necessary for the
incorporation of any changes. When flight safety is affected, such
changes shall be immediately incorporated. If warranty coverage is not
available or applicable pursuant to Attachment "C", the provisions of
Article 11.5 shall apply.
For the avoidance of doubt, the **Material Redacted** shall **Material
Redacted** pursuant to **Material Redacted**.
11.5 Major changes, (other than those which are AD's mandatory per Article
11.4), any change developed by Embraer as product improvement and any
change required by Buyer, including those changes required by either the
UAEAC as a consequence of alterations, amendments and/or innovations of its
present applicable regulations, shall be considered as optional and,
pursuant to Buyer's request, the corresponding cost proposals
shall be submitted by Embraer to Buyer for consideration and approval.
Should Buyer not approve any such change, it shall not be incorporated in
the Aircraft.
11.6 Any Major Change to the Aircraft, made in accordance with the foregoing
paragraphs, which affect the provisions of Attachment "A", shall be
incorporated in said Attachment by means of an amendment.
11.7 Except as concerns AD's and Minor Changes, the Aircraft shall, on the
Scheduled Inspection Date, comply with the terms and conditions of
Attachment "A" as from time to time amended pursuant to Article 11.6.
Determination of such compliance shall be made by Buyer pursuant to Article
7.
12. WARRANTY
The materials, design and workmanship relative to the Aircraft subject to
this Agreement, will be warranted in accordance with the terms and
conditions specified in Attachment "C". If Buyer intends to place the
Aircraft on lease to another Party or to assign, transfer or novate the
rights and obligations except as specified in Article 14, it is Buyer's
responsibility to obtain the prior written consent of Embraer, which
consent shall not be unreasonably withheld or delayed, as well as to
provide Embraer written notice of any changes as to Buyer's designated
lessee or assignee complying with item 5 of Attachment "C".
13. PRODUCT SUPPORT PACKAGE
Embraer shall supply to Buyer the Product Support Package described in
Article 2 of Attachment "B", which includes Embraer's spare parts policy,
the Technical Publications and the Services.
14. ASSIGNMENT
Buyer's rights and obligations hereunder may not be assigned, transferred
or novated without the prior written consent of Embraer, which shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Buyer may
immediately before delivery assign the rights to take delivery of an
Aircraft and Buyer's rights pursuant to **Material Redacted** to any
related person or entities or to any trust created by it or such persons or
to any financing party whether by way of security in connection with the
financing or the sale/leaseback of any Aircraft to be operated by
AeroRepublica, S.A.
Embraer's rights and obligations hereunder may not be assigned or delegated
without the prior written consent of Buyer, which shall not be unreasonably
withheld or delayed.
15. RESTRICTIONS AND PATENT INDEMNITY
This sale does not include the transfer of designs, copyrights, patents,
and other similar rights to Buyer. Embraer warrants that the Aircraft and
all systems, accessories, equipment, items and parts manufactured by or at
the direction or utilizing designs of Embraer do not infringe any patent,
copyright or other proprietary right of any person.
Subject to Buyer's duty to promptly advise Embraer of any alleged
infringement (it being understood that any failure to so notify Embraer
shall only relieve Embraer of its obligations pursuant hereto to the extent
of actual prejudice suffered by Embraer as a direct result of such
failure), Embraer shall indemnify, defend, protect and hold Buyer harmless
with respect to any claims, suits, actions, judgments, liabilities, damages
and costs, including reasonable attorney fees and expenses arising out of
or in connection with any actual or alleged infringement by any Aircraft or
any system, accessory, equipment, item or part installed on any Aircraft at
the time of delivery of such Aircraft or thereafter, at Embraer's
direction. In the event of any such infringement, and in addition to the
foregoing obligations of Embraer, Embraer shall promptly, at its sole
option and expense, either: (i) procure for Buyer the right to use the
system, accessory or equipment or part; (ii) replace such system accessory,
equipment or part with a non-infringing item or part; or (iii) modify such
system, accessory, equipment or part to make it non-infringing.
This indemnity shall not apply to Buyer-furnished equipment, nor to
aircraft engines or APUs, nor to any system, accessory, equipment or part
that was not manufactured to Embraer's detailed design, nor to any system,
accessory, equipment or part manufactured to Embraer's detailed design
without Embraer's consent.
16. MARKETING PROMOTIONAL RIGHTS
Embraer shall have the right to show for marketing purposes, free of any
charge, the image of Buyer's Aircraft, painted with Buyer's colors and
emblems, affixed in photographs, drawings, films, slides, audiovisual
works, models or any other medium of expression (pictorial, graphic, and
sculptural works), through all mass communications media such as
billboards, magazines, newspaper, television, movie, theaters, as well as
in posters, catalogues, models and all other kinds of promotional material.
**Material Redacted** Embraer **Material Redacted**. In the event such
Aircraft is sold to or operated by or for another company or person,
Embraer shall be entitled to disclose such fact, as well as to continue to
show the image of the Aircraft, free of any charge, for marketing purposes,
either with the original. If accepted, said prohibition, however, shall in
no way apply to the promotional materials or pictorial, graphic or
sculptural works already existing or to any contract for the display of
such materials or works already binding Embraer at the time of receipt of
the notification. **Material Redacted**.
17. TAXES
Embraer shall pay all taxes **Material Redacted** as may be imposed under
Brazilian laws. All other taxes, **Material Redacted** as may be imposed on
the transactions subject of this Agreement, shall be borne by Buyer.
18. APPLICABLE LAW
This Agreement shall be construed in accordance with and its performance
shall be governed by the laws of the State of New York, USA without regard
to any conflict of law rules other than General Obligations Law 5-1401 and
5-1402.
19. JURISDICTION
All disputes arising in connection with this Agreement shall be finally
settled in the courts of the United States District Court for the Southern
District of New York located in the county of New York, provided that if
such court lacks jurisdiction, disputes shall be resolved in the state
courts for the state of New York sitting in the Borough of Manhattan, City
of New York. The Parties hereby waive any other court of Jurisdiction that
may be competent for settlement of disputes arising from this Agreement.
**Material Redacted**
20. TERMINATION
20.1 Should either Party fail to perform its obligations hereunder, the other
Party shall be entitled to give notice of such failure and to require that
such failure be remedied within the period specified in that notice, which
period shall not be less than **Material Redacted** Days. Should such
failure not be remedied within the period so specified, then the Party who
gave notice of such failure shall be entitled to terminate this Agreement
**Material Redacted**. The foregoing provision shall not apply in any
circumstance where a specific right of termination is made available
hereunder or will be made available hereunder upon the expiration of a
specific period of time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN ANY
CIRCUMSTANCE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES
WHICH MAY ARISE OUT OF, OR BE CONNECTED TO, ANY BREACH OR DEFAULT UNDER OF
ANY TERM, CONDITION, COVENANT, WARRANTY, OR PROVISION OF THIS AGREEMENT,
AND WHICH EITHER PARTY WOULD OTHERWISE BE ENTITLED TO UNDER ANY APPLICABLE
LAW, INCLUDING BUT NOT LIMITED TO ANY CLAIMS SOUNDING IN CONTRACT, TORT,
EQUITY OR STATUTE.
20.2 Buyer and Embraer shall have the right to terminate this Agreement in
respect to the relevant Aircraft, upon the occurrence of any Excusable
Delay of **Material Redacted** Days or longer, unless otherwise agreed in
writing by the Parties, and Buyer shall have the right to terminate this
Agreement in respect to the relevant Aircraft upon the occurrence of any
Non-excusable Delay of **Material Redacted** Days or longer after the
relevant Aircraft Contractual Delivery Date, such rights to be exercisable
by written notice from one Party to the other to such effect no earlier
than such **Material Redacted** Day, as applicable. Upon receipt of such
notice of termination by Buyer or Embraer, as the case may be, **Material
Redacted**. It is hereby agreed by the Parties that, in either case, no
other indemnity shall be due by Embraer to Buyer.
**Material Redacted**
20.3 If Buyer terminates this Agreement before the Actual Delivery Date of an
Aircraft (except as provided in Article 20.1 and 20.2) or if Embraer
terminates this Agreement in relation to an Aircraft, pursuant to Articles
4.3 or 7.7, Buyer shall pay to Embraer (i)
damages in an amount equal to **Material Redacted**. For these purposes
Embraer may **Material Redacted**. It is hereby agreed by the Parties that
upon the receipt by Embraer of the amounts set forth above, no other
indemnity shall be due by Buyer to Embraer.
**Material Redacted**
20.4 If Buyer terminates this Agreement in respect to an Aircraft pursuant to
Article 7.6, Embraer, shall **Material Redacted** with no other penalty or
indemnity being due by Embraer to Buyer in this case.
**Material Redacted**
20.5 **Material Redacted**
21. OPTION FOR THE PURCHASE OF ADDITIONAL AIRCRAFT
Buyer shall have the option to purchase ten (10) additional Option
Aircraft, to be delivered in accordance with the following Option Aircraft
contractual delivery date:
Option Contractual Delivery Option Contractual Delivery
Aircraft Month Exercise Date Aircraft Month Exercise Date
-------- --------------------- --------------------- -------- --------------------- ---------------------
1 **Material Redacted** **Material Redacted** 6 **Material Redacted** **Material Redacted**
2 **Material Redacted** **Material Redacted** 7 **Material Redacted** **Material Redacted**
3 **Material Redacted** **Material Redacted** 8 **Material Redacted** **Material Redacted**
4 **Material Redacted** **Material Redacted** 9 **Material Redacted** **Material Redacted**
5 **Material Redacted** **Material Redacted** 10 **Material Redacted** **Material Redacted**
The Option Aircraft will be supplied in accordance with the following terms
and conditions:
21.1 **Material Redacted** is due and payable by Buyer to Embraer in accordance
with ** Material Redacted **.
21.2 The unit basic price of the Option Aircraft shall be equal to the unit
Aircraft Basic Price, provided that such Option Aircraft be delivered
within the delivery period above mentioned and in the same configuration,
specification and installations specified in Attachment "A", as it is
written on the date of signature of this Agreement, determining the Option
Aircraft Basic Price.
21.3 The unit basic price of each relevant Option Aircraft above mentioned shall
be escalated according to the escalation formula subject of Attachment "D",
determining the Option Aircraft Purchase Price.
21.4 The payment of the Option Aircraft Purchase Price shall be made according
to the following:
21.4.1 **Material Redacted** shall apply ** Material Redacted**
21.4.2 A progress payment of **Material Redacted** percent (**Material
Redacted**%) of the unit Option Aircraft Basic Price less the relevant
Option Aircraft Initial Deposit is due and payable **Material
Redacted** prior to each relevant Option Aircraft contractual delivery
date.
21.4.3 A progress payment of **Material Redacted** percent (**Material
Redacted**%) of the unit Option Aircraft Basic Price is due and
payable **Material Redacted** prior to each relevant Option Aircraft
contractual delivery date.
21.4.4 A progress payment of **Material Redacted** percent (**Material
Redacted**%) of the unit Option Aircraft Basic Price is due and
payable **Material Redacted** prior to each relevant Option Aircraft
contractual delivery date.
21.4.5 The balance of each relevant Option Aircraft Purchase Price is due
and payable upon acceptance of each relevant Option Aircraft by Buyer.
21.4.6 The provisions of Article 4.3 through 4.5 shall apply
mutatis-mutandis, to the payments to be made by Buyer towards the
Option Aircraft.
21.5 Buyer has the option to purchase the Option Aircraft **Material Redacted**.
Exercise of each **Material Redacted** shall be accomplished by means of a
written notice from Buyer delivered to Embraer by mail, return receipt
requested, express delivery or facsimile, no later than the "Exercise Date"
**Material Redacted** otherwise **Material Redacted**.
On the **Material Redacted** Exercise Date, Buyer shall inform Embraer
**Material Redacted** will be exercised or not. In the event on the
Exercise Date Buyer elects to not exercise **Material Redacted**, Buyer's
options **Material Redacted**.
If, however, in the Exercise Date Buyer elects to exercise its option
**Material Redacted**, Buyer will **Material Redacted**, provided
**Material Redacted** in Embraer's **Material Redacted**.
21.6 If the options are confirmed by Buyer as specified above, (a) an amendment
to this Agreement shall be executed by and between the Parties within
thirty (30) Days following the Option Aircraft option exercise date,
setting forth the terms and conditions
applicable to, if any, exclusively to the Option Aircraft and (b) the
**Material Redacted**.
21.7 For the avoidance of any doubt, the terms and conditions contained in this
Agreement shall also apply to any exercised Option Aircraft, with the
exception that the product support package to be applied to the exercised
Option Aircraft shall be as described in Article 2 of Attachment "B".
21.8 **Material Redacted**
22. INDEMNITY
Buyer agrees to indemnify and hold harmless Embraer and Embraer's officers,
agents, employees and assignees from and against all liabilities, damages,
losses, judgments, claims and suits, including costs and expenses incident
thereto, which may be suffered by, accrued against, be charged to or
recoverable from Embraer and/or Embraer's officers, agents, employees and
assignees by reason of loss or damage to property or by reason of injury or
death of any person resulting from or in any way connected with the
performance of services by employees, representatives or agents of Embraer
for or on behalf of Buyer related to Aircraft delivered by Embraer to
Buyer, including, but not limited to, technical operations, maintenance,
and training services and assistance performed while on the premises of
Embraer or Buyer, while in flight on Buyer-owned Aircraft or while
performing any other service, at any place, in conjunction with the
Aircraft operations of Buyer, except to the extent caused by Embraer's
willful misconduct or gross negligence.
23. NOTICES
All notices permitted or required hereunder shall be in writing in the
English language and sent, by recognized international courier service or
facsimile, to the attention of the Director of Contracts as to Embraer and
of the CEO as to Buyer, to the addresses indicated below or to such other
address as either Party may, by written notice, designate to the other. All
notices shall be deemed to have been duly made, given and received, only
when properly addressed (as set forth below): (i) on the date received by
personal delivery; or (ii) on the date received when deposited with a
internationally recognized courier service; or (iii) five business days
after sending, when sent via Certified Mail, Return Receipt Request; or
(iv) upon receipt when sent via facsimile (with a second copy sent via
Mail) to the facsimile number set forth below and a confirmation of receipt
is received by the sending Party:
23.1 EMBRAER:
EMBRAER - Empresa Brasileira de Aeronautica S.A.
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
12.227-901 Sao ▇▇▇▇ dos ▇▇▇▇▇▇ - SP - Brasil
Telephone: (▇▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
23.2 BUYER:
COPA HOLDINGS, S.A.
Complejo Business Park - ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
24. CONFIDENTIALITY
Neither Buyer nor Embraer shall disclose the terms of this Agreement except
as needed to its officers, employees, auditors, insurers (brokers) and
legal advisors and except (a) as required by law or legal process, (b) to a
prospective financing party in connection with the financing of Aircraft
(limited to assignable provisions), or (c) with the prior written consent
of the other party. In addition, Buyer and Embraer may disclose the terms
of this Agreement to shareholders who hold more than ten percent (10%) of
their respective common shares, provided that (i) such shareholders are
not, in the case of Buyer, competitors or affiliates of competitors of
Embraer in the business of manufacturing aircraft, or in the case of
Embraer, competitors or affiliates of competitors of Buyer or any affiliate
of either Buyer or AeroRepublica, S.A. in the business of a scheduled
airline, and (ii) such shareholders, to the extent not officers of a Party
shall have executed a confidentiality agreement with the other Party.
Without limiting the foregoing, in the event either Party is legally
required to disclose the terms of this Agreement, each Party agrees to
exert its best efforts to request confidential treatment of the articles
and conditions of this Agreement relevantly designated by the other as
confidential.
25. SEVERABILITY
If any provision or part of a provision of this Agreement or any of the
Attachments shall be, or be found by any authority or court of competent
jurisdiction to be, illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the other provisions or
parts of such provisions of this Agreement, all of which shall remain in
full force and effect.
26. NON-WAIVER
Except as otherwise specifically provided to the contrary in this
Agreement, any Party's refrain from exercising any claim or remedy provided
for herein shall not be deemed a waiver of such claim or remedy, and shall
not relieve the other Party from the performance of such obligation at any
subsequent time or from the performance of any of its other obligations
hereunder.
27. INTEGRATED AGREEMENT
All attachments and exhibits referred to or delivered in connection with
this Agreement and/or attached hereto are, by such reference or attachment,
incorporated in this Agreement to the same extent as if fully set forth
herein.
28. NEGOTIATED AGREEMENT
Buyer and Embraer agree that this Agreement, including all of its
Attachments, has been the subject of discussion and negotiation and is
fully understood by the Parties, and that the rights, obligations and other
mutual agreements of the Parties contained in this Agreement are the result
of such complete discussion and negotiation between the Parties.
29. WAIVER OF JURY TRIAL
EACH OF EMBRAER AND BUYER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE BOTH PARTIES INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
30. WAIVER OF IMMUNITY
To the extent that either party may in any jurisdiction in which
proceedings may at any time be taken for the determination of any question
arising under or for the enforcement of this Agreement be entitled to claim
or otherwise be accorded for itself or its respective property, assets or
revenues immunity fro suit or attachment (whether in aid of execution,
before judgment or otherwise) or other legal process, and to the extent
that in any such jurisdiction, there may be attributed to either party, or
its respective property, assets or revenues such immunity (whether or not
claimed), both Parties hereby irrevocably agree not to claim and waive such
immunity to the fullest extent permitted by the law of such jurisdiction.
31. PAYMENTS IN US DOLLARS
All amounts to be paid hereunder shall be paid in United States dollars
("Dollars"), in immediately available funds. The specifications of Dollars
in this transaction is of the essence. The obligations of either party in
respect of payments to be made hereunder shall not be discharged by an
amount paid in another currency, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on prompt conversion to
Dollars under normal banking procedures does not yield the amount of
Dollars owing to the party receiving the same. If a party receives an
amount in respect of the other party's liability under this Agreement or if
such liability is converted into a claim, proof, judgment or order in a
currency other than Dollars, the party liable for payment will indemnify
the party to whom payment is to be made an in independent obligation
against any loss arising out of or as a result of such receipt or
conversion. If the amount received by such party, when converted into
Dollars (at the market rate at which the receiving party is able on the
relevant date to purchase Dollars in New York with that other currency) is
less than the amount owed in Dollars the party liable for such payment
hereunder will, forthwith on demand, pay to the party entitled to receive
such payment an amount in Dollars equal to the deficit.
32. COUNTERPARTS
This Agreement may be signed by the Parties in any number of separate
counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument and all of which when taken together shall
constitute one and the same instrument.
33. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with respect
to the matters contained herein and supersedes all previous and connected
negotiations, representations and agreements between the Parties, whether
in writing or other form. This Agreement may not be altered, amended or
supplemented except by a written instrument executed by the Parties.
ATTACHMENT "A"
AIRCRAFT CONFIGURATION
1. STANDARD AIRCRAFT
The EMBRAER 190 Aircraft shall be manufactured according to the standard
configuration specified in Embraer's Technical Description TD-190 Rev.6
dated as of December **Material Redacted**.
2. OPTIONAL EQUIPMENT
2.1 OPTIONS TO STANDARD AVIONICS CONFIGURATION
**Material Redacted**
2.2 OPTIONAL SYSTEM/OTHER EQUIPMENT
a) GE CF34-10E6A1 Engines
b) LR Version
**Material Redacted**
2.3 INTERIOR OPTIONAL ITEMS
**Material Redacted**
**Material Redacted**
**Material Redacted**
3. FINISHING
The Aircraft will be delivered to Buyers as follows:
3.1 EXTERIOR FINISHING:
The fuselage of the Aircraft shall be painted according to Buyer's
designated colors and paint scheme which shall be supplied to Embraer by
Buyer on or before **Material Redacted** months prior to the relevant
Aircraft Contractual Delivery Date.
The wings and the horizontal stabilizer shall be supplied in the standard
colors, i.e., ▇▇▇▇ BAC707.
3.2 INTERIOR FINISHING:
Buyer shall inform Embraer on or before **Material Redacted** months prior
to the relevant Aircraft Contractual Delivery Date of its choice of
materials and colors of all and any item of interior finishing such as seat
covers, carpet, floor lining on galley areas, side walls and overhead
lining, galley lining and curtain. The above-mentioned schedule for
definition of interior finishing shall only be applicable if Buyer selects
its materials from the choices offered by and available at Embraer. In case
Buyer opts to use different materials and or patterns, such schedule shall
be **Material Redacted** by the time Buyer informs Embraer its intention to
use such different materials and patterns.
3.3 BUYER FURNISHED AND BUYER INSTALLED EQUIPMENT (BFE AND BIE):
Buyer may choose to have carpets, tapestries, seat covers and curtain
fabrics supplied to Embraer for installation in the Aircraft as BFE.
Materials shall conform to the required standards and comply with all
applicable regulations and airworthiness requirements. Delays in the
delivery of BFE equipment or quality restrictions that prevent the
installation thereof in the time frame required by the Aircraft
manufacturing process shall entitle Embraer to either delay the delivery of
the Aircraft or present the Aircraft to Buyer
ATTACHMENT "A"
AIRCRAFT CONFIGURATION
without such BFE, in which case Buyer **Material Redacted** of the Aircraft
** Material Redacted**. All BFE equipment shall be delivered to Embraer in
DDP - Embraer facilities in Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇, Brazil (Incoterms
2000) conditions.
The Aircraft galleys have provisions for the following BIE items that,
unless timely agreed by the Parties, are not supplied or installed by
Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
The following items will be BFE and shall be provided by Buyer in the
conditions stated herein: demo vest, demo mask, trolleys and coffee maker.
4. REGISTRATION MARKS AND TRANSPONDER CODE
The Aircraft shall be delivered to Buyer with the registration marks
painted on them. The registration marks and the transponder code shall be
supplied to Embraer by Buyer no later than ninety (90) Days before each
relevant Aircraft Contractual Delivery Date.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT
BETWEEN THE TERMS OF THIS ATTACHMENT "A" AND THE TERMS OF THE PRELIMINARY
TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT "A" SHALL
PREVAIL.
**Material Redacted**
**Material Redacted**
ATTACHMENT B
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
1. FERRY EQUIPMENT AND ASSISTANCE
1.1 If it is necessary for any ferry equipment to be installed by Embraer
for the ferry flight of any Aircraft between Brazil and Colombia,
Embraer will make available a standard ferry equipment to Buyer
(hereinafter the "Kit"), at **Material Redacted**, except as set forth
below. In this case, Buyer shall immediately upon its arrival in
Colombia, remove the Kit from the Aircraft and return it to Embraer in
Brazil at **Material Redacted**, including the necessary insurance.
If Embraer provides the Kit to Buyer and if the Kit is either
utilized, whether totally or not, or if the Kit is not returned by
Buyer, complete and in the same condition **Material Redacted** as it
was delivered to Buyer, Buyer shall pay Embraer the **Material
Redacted**.
In such case, the original Kit shall become the property of Buyer, and
Buyer shall make the above mentioned payment to Embraer upon
presentation of a sight draft by Embraer.
1.2 Embraer shall make a representative available on board of the first
two (2) Firm Aircraft during their ferry flight in order to assist the
Buyer's flight crew in the communication with Brazilian custom
clearances and Aircraft refueling individuals and to assist in
obtaining support from Embraer in case any such support becomes
necessary during the Brazilian portion of the ferry flight. Such
representative shall remain on board of the Aircraft until the last
stop in Brazilian territory. Any other arrangement shall be requested
by Buyer no less than thirty (30) Business Days prior to the relevant
Aircraft Contractual Delivery Date and shall be contingent upon the
concurrence of Embraer at its sole criteria, such concurrence not to
be unreasonably withheld.
2. PRODUCT SUPPORT PACKAGE
2.1 MATERIAL SUPPORT
2.1.1 SPARES POLICY
Embraer guarantees the supply of spare parts, ground support
equipment and tooling, except engines and its accessories,
hereinafter referred to as "Spare(s)", for the Aircraft for a
period of **Material Redacted** years after **Material Redacted**
delivery of the last aircraft of the same type **Material
Redacted**. Except as may otherwise be expressly set forth
herein, such Spares shall be supplied according to the prevailing
availability, sale conditions, delivery schedule and effective
price on the date of acceptance by Embraer of the purchase order.
The Spares may be supplied either by Embraer in Brazil or through
its subsidiaries or distribution centers located abroad.
2.1.2 RSPL
As soon as reasonably practicable, but no later than **Material
Redacted** months prior to the first Aircraft delivery date,
Embraer shall present to Buyer a
2
recommended Spare provisioning list (the "RSPL"). The objective
of the RSPL is to provide Buyer with a detailed list of Spares
that will be reasonably necessary to support the initial
operation and maintenance of the Aircraft by Buyer. Such
recommendation will be made in consultation with Buyer and be
based on the experience of Embraer and on the operational
parameters established by Buyer considering the entire EMBRAER
190 fleet composed by the Aircraft subject of this Agreement, and
the EMBRAER 190 aircraft subject of Purchase Agreement
DCT-006/2003. Buyer shall be fully responsible for the
administration of such Spares.
Embraer will provide a qualified team to attend pre-provisioning
conferences as necessary to discuss Buyer requirements and the
RSPL as well as any available spare parts support programs
offered by Embraer. Such meeting shall be held at a mutually
agreed upon place and time.
Buyer may elect to acquire all the items contained in the RSPL or
to combine a partial acquisition of the RSPL items with a
participation in the special spare parts support programs,
available from Embraer.
Buyer may acquire the items contained in the RSPL directly from
Embraer or directly from Embraer's vendors. For the items
contained in the RSPL that Buyer elects to purchase directly from
Embraer (the "IP Spares"), Buyer must place a purchase order with
Embraer on or before **Material Redacted** Days prior to the
first Aircraft Contractual Delivery Date in order to have the IP
Spares available in stock by **Material Redacted**. For purchase
orders placed by Buyer out of the schedule set forth above, the
IP Spares shall be provided to Buyer in accordance with the
quoted lead times. Embraer will deliver the IP Spares in
**Material Redacted** condition, at the port of clearance
indicated by Embraer.
As requested by Buyer, but in no case **Material Redacted**,
Embraer will update the data of the RSPL incorporating
engineering and price changes. Embraer will maintain a master
copy of the RSPL updated until **Material Redacted**.
2.1.3 CREDIT FOR SURPLUS IP SPARES
Embraer offers to Buyer a program for certain surplus IP Spares
manufactured by Embraer and which were recommended in writing by
Embraer limited to the quantities, part numbers and serial
numbers (if applicable) identified in the relevant invoices. Such
program will provide terms no less favorable than the following:
a. Credit Program: During the period commencing **Material
Redacted** years after delivery of the first Aircraft under
the Purchase Agreement of which this is an Attachment and
ending **Material Redacted** years after such delivery,
Embraer will, upon receipt of a written request and subject
3
to the exceptions and conditions in this paragraph "a", and
in paragraphs "b", "c", "d" and "e" of this section, offer a
credit for new and unused IP Spares manufactured by Embraer
(i) which have been supplied by Embraer as IP Spares for the
Aircraft subject of this Agreement and (ii) which are
surplus to Buyer's needs. Such credit may be used toward the
purchase of Spares manufactured by Embraer, Technical
Publications or Services (excluding training) offered by
Embraer.
b. EXCEPTIONS: Embraer will not issue credits for IP Spares
which were purchased by Buyer in excess of or differently
from the Spares recommended in writing by Embraer to Buyer
by the IPL as initial provisioning for the Aircraft (as
amended from time to time by agreement of the Parties) and
for IP Spares which have become obsolete or have been
superseded by another part as a result of (i) Buyer's
modification of an Aircraft for which the IP Spares were
purchased; (ii) Embraer design improvements (except for IP
Spares which have become obsolete because of a defect in
design); (iii) IP Spares which are shelf-life limited;
(iv)damaged IP Spares; or (v) IP Spares that were not stored
in accordance with OEM guidelines.
c. CREDIT VALUES: The credit for each IP Spare to be issued by
Embraer will be: **Material Redacted** an amount equal to
**Material Redacted**.
d. DELIVERY OF SURPLUS IP SPARES: IP Spares for which a credit
has been requested shall be delivered by Buyer, freight and
insurance prepaid, to Embraer's plant in Sao ▇▇▇▇ dos
▇▇▇▇▇▇, ▇▇, Brazil, or any other destination as Embraer may
reasonably designate. All returned IP Spares are subject to
Embraer's quality control inspection and acceptance. All IP
Spares which are rejected by Embraer's quality control
and/or are included in the exceptions set forth in paragraph
a.1 hereinabove, will be returned to Buyer at Buyer's
expense, no credit being due in this case.
e. CREDIT ISSUE: After Embraer's acceptance of those IP Spares
suitable for the credit program, under the terms of this
Agreement, Embraer will notify the available credit amount
to Buyer and provide all relevant information as to credit
utilization.
2.1.4 OTHER SPARES SERVICES
AOG services: Embraer will maintain a call center for the AOG
(Aircraft On Ground) services, twenty four (24) hours a day,
seven (7) days a week. All the contacts with the call center can
be made through TOLL FREE numbers (phone and fax) and e-mail.
Embraer will also maintain the regular direct lines (phone and
fax), in case of failures. The information concerning TOLL FREE,
regular lines and e-mail address can be obtained through the
Customer Account Manager designated to Buyer by Embraer or
through Embraer's Customer Service offices.
4
Embraer will deliver parts under AOG from the nearest location to
Buyer's facilities, provided that the part is available at this
location at the moment of the request **Material Redacted**.
Other than AOG orders, Buyer may expedite spare parts orders as
spare parts critical orders (imminent AOG or work stoppage
situation) or as spare parts routine expedite orders (urgent
stock replenishment - "USR"). Embraer will deliver expedite spare
parts ordered, within the following lead times:
**Material Redacted** **Material Redacted** **Material Redacted**
--------------------- --------------------- ---------------------
**Material Redacted** **Material Redacted** **Material Redacted** **Material Redacted**
**Material Redacted** **Material Redacted** **Material Redacted** **Material Redacted**
**Material Redacted** **Material Redacted** **Material Redacted** **Material Redacted**
Routine and/or Critical Spares: Embraer will deliver routine
and/or critical Spares (other than AOG Spares) **Material
Redacted**, depending on where the purchase order was placed with
or otherwise agreed between Embraer and Buyer. Routine and/or
critical Spares shall be delivered according to their lead times,
depending upon the purchase order priority and with the
respective authorized release certificate or any similar document
issued by a duly authorized person.
Upon receipt of an order from Buyer, according to the above
referred terms, Embraer shall send to Buyer the shipping
information (airwaybill number and flight date and number) after
receipt of such information from the freight forwarder indicated
by Buyer in the shipping instructions provided to Embraer by
Buyer in the relevant order.
2.2 AIRCRAFT TECHNICAL PUBLICATIONS:
2.2.1 AIRCRAFT PUBLICATIONS
Embraer shall supply, at **Material Redacted**, copies of
operational and maintenance publications applicable thereto, in
the English language and in the quantities as specified in
Exhibit "1" to this Attachment "B". Such publications are issued
under the applicable specification **Material Redacted**.
The revision service for these publications is provided,
**Material Redacted**, including mailing services (except for air
cargo shipping) and the software license fee for the CD ROM,
**Material Redacted**.
2.2.2 VENDOR ITEMS PUBLICATIONS
5
With respect to vendor items installed in the Aircraft which have
their own publications, Buyer will receive them in the quantity
specified in Exhibit "1" to this Attachment "B", in their
original content and printed form, directly from the suppliers,
which are also responsible to keep them continuously updated
through a direct communication system with Buyer.
2.2.3 Within **Material Redacted** months prior to the Contractual
Delivery Date of the first Aircraft, Embraer shall **Material
Redacted**, and Buyer shall **Material Redacted** before the
first Aircraft Contractual Delivery Date, **Material Redacted**.
2.2.4 The Parties further understand and agree that in the event Buyer
elects not to take all or any one of the publications above
mentioned, or revisions thereof, no refund or other financial
adjustment of the Aircraft Basic Price will be made since such
publications are offered at no charge to Buyer.
2.3 SERVICES
Embraer shall provide familiarization programs and on-site
support for the Aircraft (the "Services") in accordance with the
terms and conditions described below:
2.3.1 Familiarization Programs:
a. Familiarization program specified below is being offered at
**Material Redacted**, except for **Material Redacted**. The
familiarization programs shall be conducted in accordance
with the customer's training program and with all applicable
regulations and requirements of the FAA.
b. Notwithstanding the eventual use of the term "training" in
this paragraph 2.3.1, the intent of this program is solely
to familiarize Buyer's pilots, mechanics, employees or
representatives, duly qualified per the governing body in
the country of Buyer's operation, with the operation and
maintenance of the Aircraft. It is not the intent of Embraer
to provide basic training ("ab-initio") to any
representatives of Buyer.
Any trainee appointed by Buyer for participation in any of
the familiarization programs shall be duly qualified per the
governing body in the country of Buyer's operation and
fluent in the English language as all training will be
conducted in, and all training material will be presented
in, such language. Pilots and mechanics shall also have
previous experience in the operation and maintenance, as
applicable, of jet aircraft or, as a minimum, of
twin-engined turboprop aircraft. Neither Embraer nor
training provider make any representation or give any
guarantee regarding the successful completion of any
training program by Buyers trainees, for which Buyer is
solely responsible.
6
c. The familiarization program, as applicable, shall occur
prior to **Material Redacted** Aircraft Actual Delivery Date
as it shall be previously agreed upon by Buyer and Embraer.
Buyer must give written notification to Embraer **Material
Redacted** Days in advance of Buyer's expected training
schedule, including the full name and identification of each
attendee. Substitutions will not be accepted for training
within this period. Should Buyer not take all or any portion
of the familiarization program for an Aircraft on or before
**Material Redacted** months following the Actual Delivery
Date of such Aircraft, Buyer shall be deemed to have fully
waived its rights to such service, no refund or indemnity
being due by Embraer to Buyer in this case.
d. All familiarization programs shall be provided by Embraer or
its qualified designated representative **Material
Redacted** or in such other location as Embraer or training
provider may reasonably designate.
e. The part of the pilot familiarization program relative to
the ground school shall be provided, **Material Redacted**
as may be agreed by Embraer and Buyer. **Material
Redacted**. The familiarization program referred to above
covers:
e.1. One (1) Pilot Familiarization Program for up to
**Material Redacted** pilots per Aircraft including (i)
ground familiarization as regards Aircraft systems,
weight and balance, performance and normal/emergency
procedures and, (ii) flight simulator training in a
**Material Redacted** simulator in accordance with the
Air Authority's approved Flight Operations Training
Program. **Material Redacted**.
e.2. One (1) maintenance familiarization course for up to
**Material Redacted** qualified mechanics **Material
Redacted**. This course shall consist of classroom
familiarization with Aircraft systems and structures
and shall be in accordance with ATA specification 104,
level III.
e.3. One (1) Flight Attendant Familiarization Course for up
to **Material Redacted**. This course shall consist of
classroom familiarization, including a general
description of Aircraft and systems to be used by
flight attendants. **Material Redacted**.
e.4. **Material Redacted**
e.5. **Material Redacted**
f. **Material Redacted**
7
g. If requested, Embraer through its field support
representative referred to in Article 2.3.2 below, may
demonstrate the procedures described in the classroom,
subject to Buyer's Aircraft availability.
h. Buyer shall be solely responsible for submitting its
training programs to the Air Authority for approval. Embraer
shall give Buyer reasonable assistance in such process.
i. The presence of Buyer's authorized trainees shall be allowed
exclusively in those areas related to the subject matter
hereof and Buyer agrees to hold harmless Embraer from and
against all and any kind of liabilities in respect of such
trainees to the extent permitted by law.
j. **Material Redacted**
k. **Material Redacted**
Any other service will be subject to a specific agreement to be
negotiated by the Parties and will be charged by Embraer
accordingly.
2.3.2 **Material Redacted** support:
a. Embraer shall indicate at its sole discretion, and provide
**Material Redacted** to Buyer, the services of a field
support representative ("FSR") **Material Redacted**
b. **Material Redacted**
c. FSR shall assist and advise Buyer on the Aircraft
maintenance during its initial operation and act as liaison
between Buyer and Embraer.
d. FSR shall assist and advise Buyer on the Aircraft
maintenance during its initial operation and act as liaison
between Buyer and Embraer.
e. At no charge to Embraer, Buyer shall provide such FSR with
communication services (telephone, facsimile) as well as
office space and facilities at Buyer's main maintenance
base, and Buyer shall also (a) arrange all necessary work
permits and airport security clearances required for Embraer
employees, to permit the accomplishment of the services
mentioned in this item 2.3.2, in due time; and (b) obtain
all necessary custom clearances both to enter and depart
from Buyer's country for Embraer's employees and their
personal belongings and professional tools.
f. During the **Material Redacted**, Buyer shall permit, as
required, reasonable access to the maintenance and operation
facilities as well as to the data and files of Buyer's
Aircraft fleet during normal business hours. It is hereby
agreed and understood that Buyer shall make available at the
8
office designated for permanence of the FSR, one (1) set of
updated Technical Publications as referred to in Article 2.2
above, it being Buyer's responsibility to perform the
revision services in order to maintain such publications
updated within the period **Material Redacted**
g. Buyer shall bear all **Material Redacted**. These expenses
shall be borne by Embraer **Material Redacted**.
h. Without a previous written authorization from Embraer, FSR
shall not participate in test flights or flight
demonstrations. In case Buyer obtains such previous
authorization, Buyer shall include the FSR in Buyer's
insurance policy. Embraer reserves the right to halt the
services mentioned in this item 2.3.2, should any of the
following situations occur at Buyer's base (for the duration
of such situation): a) there is a labor dispute or work
stoppage in progress; b) war or war like operations, riots
or insurrections; c) any conditions which is dangerous to
the safety or health of Embraer's employee; or d) the
government of Buyer's country refuses permission to
Embraer's employee to enter the country.
i. The Parties further understand and agree that in the event
Buyer elects not to take all or any portion of the
**Material Redacted** support provided for herein,
**Material Redacted**. Any other additional **Material
Redacted** support shall depend on mutual agreement between
the Parties and shall be charged by Embraer accordingly.
j. The presence of FSR shall be allowed exclusively in those
areas related to the subject matter hereof and Embraer
agrees to hold harmless Buyer from and against all and any
kind of liabilities in respect of such FSR to the extent
permitted by law, **Material Redacted**
k. **Material Redacted**
2.4 PRODUCT SUPPORT PACKAGE FOR THE OPTION AIRCRAFT
The product support package for the exercised Option Aircraft shall be
limited to **Material Redacted**.
**Material Redacted**
EXHIBIT "1" TO ATTACHMENT B -- TECHNICAL PUBLICATIONS LIST
The quantity of technical publications covering Aircraft operation and
maintenance shall be delivered to Buyer in accordance with the following list:
OPERATIONAL SET
Title **Material Redacted**
1. Airplane Flight Manual (AFM)(*) **Material Redacted**
2. Weight & Balance Manual (WB)(*) **Material Redacted**
3. Airplane Operations Manual (AOM)(*) **Material Redacted**
4. Quick Reference Handbook (QRH)(*) **Material Redacted**
5. Dispatch Deviation Procedures Manual (DDPM)(*) **Material Redacted**
6. Supplementary Performance Manual (SPM)(*) **Material Redacted**
7. Operational Bulletins Set (OB) **Material Redacted**
8. Standard Operating Procedures Manual (SOPM) **Material Redacted**
9. Flight Attendant Manual (FAM) **Material Redacted**
MAINTENANCE SET
Title **Material Redacted**
10. Aircraft Maintenance Manual (AMM) (***) **Material Redacted**
11. Aircraft Illustrated Parts Catalog (AIPC) (***) **Material Redacted**
12. Fault Isolation Manual (FIM) (***) 4
13. Non Destructive Testing Manual (NDI) (***) **Material Redacted**
14. Maintenance Planning Document (MPD) (****) **Material Redacted**
15. Wiring Manual (WM) (***) **Material Redacted**
16. Structural Repair Manual (SRM) (***) **Material Redacted**
17. Service & Information Bulletins Set (SB/IB) **Material Redacted**
18. Service Newsletters (SNL) **Material Redacted**
19. Parts Information Letter (PIL) **Material Redacted**
10
20. System Schematic Manual (SSM) (***) **Material Redacted**
21. Instructions for Ground Fire Extinguishing and Rescue (IGFER) (****)
22. Airport Planning Manual (APM) (****)
23. Illustrated Tool & Equipment Manual (ITEM) (****) **Material Redacted**
24. Task Card System CDROM (TCS) (***) **Material Redacted**
25. Ramp Maintenance Manual (RMM) (***) **Material Redacted**
26. Power plant Build-up Manual (PPBM)(**) **Material Redacted**
27. Corrosion Prevention Manual (CPM) (***)
28. Component Maintenance Manual (CMM) (**) **Material Redacted**
29. Airplane Recovery Manual (ARM) (****) **Material Redacted**
30. Maintenance Facility and Equipment Planning (MFEP) (****) **Material Redacted**
31. Standard Wiring Practices Manual (SWPM) (****) **Material Redacted**
32. Standard Manual (SM) **Material Redacted**
33. Consumable Products Catalog (CPC) **Material Redacted**
34. Maintenance Review Board Report (MRB) **Material Redacted**
**Material Redacted**
EXHIBIT "2" TO ATTACHMENT B -- INSURANCE SPECIAL CLAUSE
Buyer shall include the following endorsements in its Hull and
Comprehensive Airline Liability insurance policies:
1. Hull All Risks Policy, including War, Hi-jacking and Other Perils.
"It is hereby understood and agreed that Insurers agree to waive rights of
subrogation against Embraer with regard to the insured Aircraft.
This endorsement shall not operate to prejudice Insurer's rights of
recourse against Embraer - Empresa Brasileira de Aeronautica S.A. as
manufacturer, repairer, supplier or servicing agent where such right of
recourse would have existed had this endorsement not been effected under
this Policy."
2. Comprehensive Airline Liability Policy, based on the AVN53 - Additional
Insured Endorsement
"It is hereby understood and agreed that Embraer - Empresa Brasileira de
Aeronautica S.A. including any business entity owned by or subsidiaries to
Embraer, and all partners, executive officers, employees and stock holders,
are added as Additional Insureds only with respect to the operation of the
Aircraft by the Named Insured.
This endorsement does not provide coverage for any Additional Insured with
respect to claims arising out of its legal liability as manufacturer,
repairer, supplier or servicing agent and shall not operate to prejudice
Insurer's right of recourse against any Additional Insured as manufacturer,
repairer, supplier or servicing agent."
3. Notwithstanding anything to the contrary as specified in the Policy or any
endorsement thereof, the coverages stated in Articles 1 and 2 above, shall
not be cancelled or modified by the Insurer, without 48 hours advance
written notice to Embraer to such effect.
This Endorsement attaches to and forms part of Policy No. ______________,
and is effective from the ____ day of ______, 200_."
ATTACHMENT "C"
WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
1. Embraer, subject to the conditions and limitations hereby expressed,
warrants the Aircraft subject of the Purchase Agreement to which this will
be an Attachment, as follows:
a. For a period of **Material Redacted** months from the date of delivery
to Buyer, such Aircraft will be free from:
- Defects in materials, workmanship and manufacturing processes in
relation to parts manufactured by Embraer or by its
subcontractors holding an Embraer part number;
- Defects inherent to the design of the aircraft and its parts
designed or manufactured by Embraer or by its subcontractors
holding an Embraer part number.
b. For a period of **Material Redacted** months from the date of delivery
to Buyer, such Aircraft will be free from:
- Defects in operation of vendor (Embraer's supplier) manufactured
parts, not including the Engines, Auxiliary Power Unit (APU) and
their accessories ("Vendor Parts"), as well as failures of
mentioned parts due to incorrect installation or installation not
complying with the instructions issued or approved by their
respective manufacturers.
- Defects due to non-conformity of Vendor Parts to the technical
specification referred to in the Purchase Agreement of the
aircraft.
Once the above-mentioned periods have expired, Embraer will transfer to
Buyer the original Warranty issued by the vendors, to the extent the same
remains in effect and shall provide Buyer with reasonable assistance in
enforcing its rights in respect thereof.
2. Embraer, subject to the conditions and limitations hereby expressed,
warrants that:
a. All spare parts or ground support equipment, not including Engines,
APU and their Accessories, which have been manufactured by Embraer or
by its subcontractors holding an Embraer part number, which will
permit their particular identification and which have been sold by
Embraer or its representatives will, for a period of **Material
Redacted** months from the date of the invoice, be free from defects
of design, material, workmanship, manufacturing processes and defects
inherent to the design of the above mentioned parts or ground support
equipment.
b. All spare parts or ground support equipment, which have been designed
and manufactured by vendors, not including Engines, APU and their
related accessories, and stamped with a serial number which will
permit their particular identification and which have been sold by
Embraer or its representatives will, for a period of **Material
Redacted** months from the date of the invoice, be free from
malfunction, defect of material and manufacture.
3. The obligations of Embraer as expressed in this Warranty are limited to
replace or repair **Material Redacted**, depending solely upon its own
judgment, the parts that are returned to Embraer or its representatives
within a period of **Material Redacted** Days after the occurrence of the
defect, at Buyer's expense (including but not limited to, freight,
insurance, taxes and customs duties), adequately packed, provided that such
components are actually defective and that the defect has occurred within
the periods stipulated in this certificate. Should the defective part not
be returned to Embraer within
ATTACHMENT "C"
WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
such **Material Redacted** Days period, Embraer shall have the right, at
its sole discretion, to deny the warranty claim.
NOTE: Notification of any defect claimed under this item 3 must be given to
Embraer within **Material Redacted** Days after such defect is found.
All parts **Material Redacted**.
Parts supplied to Buyer as replacement for defective parts are warranted
for the balance of the warranty period still available from the original
warranty of the exchanged parts.
4. Embraer will accept no warranty claims under any of the circumstances
listed below:
a. When the Aircraft has been subjected to experimental flights (not
including **Material Redacted** undertaken at the request of Embraer),
or in any other way not in conformity with the flight manual or the
airworthiness certificate, or subjected to any manner of use in
contravention of applicable navigation or other regulations and rules
of either the government authorities of whatever country in which the
aircraft is operated or I.C.A.O.;
b. When the Aircraft or any of its parts have been altered or modified by
Buyer, without prior approval from Embraer or from the manufacturer of
the parts through a service bulletin, **Material Redacted**;
c. Whenever the Aircraft or any of its parts have been involved in an
accident (other than an accident unrelated to the claim for which
coverage is sought), or when parts either defective or not complying
to manufacturer's design or specification have been used **Material
Redacted**;
d. Whenever parts have had their identification marks, designation, seal
or serial number altered or removed;
e. In the event of negligence, misuse or maintenance services done on the
aircraft, or any of its parts not in accordance with the respective
maintenance manual;
f. In cases of deterioration, wear, breakage, damage or any other defect
resulting from the use of inadequate packing methods when returning
items to Embraer or its representatives.
5. This Warranty does not apply to defects presented by expendable items,
whose service life or maintenance cycle is lower than the warranty period,
and to materials or parts subjected to deterioration.
6. The Warranty hereby expressed is established between Embraer and Buyer, and
it cannot be transferred or assigned to others, unless by written consent
of Embraer or according to Article 14 of the Purchase Agreement of which
this is an Attachment.
7. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF
BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL
OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE
OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST
EMBRAER OR ANY ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY
OTHER REASON IN ANY AIRCRAFT OR OTHER ITEM DELIVERED UNDER THE
ATTACHMENT "C"
WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
PURCHASE AGREEMENT OF WHICH THIS IS AN ATTACHMENT, INCLUDING DATA,
DOCUMENT, INFORMATION OR SERVICE, INCLUDING BUT NOT LIMITED TO:
a. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
b. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
c. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR
NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF EMBRAER OR
ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR IMPUTED; AND
d. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR
DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH
RESPECT TO ANY AIRCRAFT OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
For the **Material Redacted**.
8. No representative or employee of Embraer is authorized to establish any
other warranty than the one hereby expressed, nor to assume any additional
obligation, relative to the matter, in the name of Embraer and therefore
any such statements eventually made by, or in the name of Embraer, shall be
void and without effect.
ATTACHMENT "D"
PRICE ESCALATION FORMULA
**Material Redacted**
** 3 pages **
ATTACHMENT "E"
**MATERIAL REDACTED**
**Material Redacted**
**2 Pages**
ATTACHMENT "H"
PERFORMANCE GUARANTEE
1. GUARANTEES
Embraer, subject to the conditions and limitations hereby expressed, and
considering the Aircraft EMBRAER 190 LR version, equipped with Embraer
furnished General Electric CF34-10E6A1 engines, guarantees that each
Aircraft on the relevant Actual Delivery Date shall comply with the
following performance:
1.1 CRUISE SPECIFIC AIR RANGE
The cruise specific air range at a gross weight of **Material Redacted** lb
(**Material Redacted** kg) in a standard day (ISA), at an altitude of
**Material Redacted** ft, at **Material Redacted** KTAS using not more than
maximum cruise thrust, shall not be less than the guarantee value:
Nominal: **Material Redacted** NAM/lb
Guarantee: **Material Redacted** NAM/lb
1.2 WEIGHT GUARANTEE
1.2.1 Maximum Take-Off Weight (MTOW) of the Aircraft shall not be less
than **Material Redacted** lb.
1.2.2 Maximum Landing Weight (MLW) of the Aircraft shall not be less
than **Material Redacted** lb.
1.2.3 Maximum Zero Fuel Weight (MZFW) of the Aircraft shall not be
less than **Material Redacted** lb.
1.2.4 Maximum Equipped Empty Weight (EEW) for the Aircraft in Buyer
configuration as defined in the table below is guaranteed not to
exceed **Material Redacted** lb (**Material Redacted** kg).
**Material Redacted**
**3 pages**
2. AIRCRAFT CONFIGURATION
2.1 The guarantees stated above are based on the Aircraft configuration as
defined in the Technical Description TD-190 Rev.6 dated as of December
2005, plus specific Buyer configuration options as defined at
Attachment "A" to the Purchase Agreement, (hereinafter referred to as
the "Detail Specification"). If necessary, appropriate adjustment to
this Aircraft Performance Guarantees shall be made for changes in such
Detail Specification (including but not limited to Buyer requests for
changes, Proposal of Major Changes or any other changes mutually
agreed upon between the Buyer and Embraer) approved in writing by the
Buyer and Embraer. Embraer shall account for such adjustments in its
evidence of compliance with the guarantees. Any **Material Redacted**
this **Material Redacted**.
In the event that after the date of this Agreement any unforeseen
change is made to any law, governmental regulation or mandatory
requirement, or in the application of any such law, governmental
regulation or requirement that affects
ATTACHMENT "H"
PERFORMANCE GUARANTEE
the certification basis for the Aircraft, and as a result thereof, a
change is made to the configuration and/or the performance of the
Aircraft in order to obtain certification, the guarantees set forth in
this Aircraft Performance Guarantee shall be appropriately modified to
reflect any such change.
2.2 The performance guarantees of **Material Redacted** shall be adjusted
by Embraer for the following in its evidence of compliance with such
guarantees:
a) Changes to the Detail Specification including change requested by
Buyer, Major Changes (as defined in the Purchase Agreement) or
any other changes mutually agreed upon between the Buyer and
Embraer.
b) The difference between the component weight allowances given in
the appropriate section of the Detail Specification and the
actual weights.
3. GUARANTEE CONDITIONS
3.1 All guaranteed performance data are based on the ICAO International
Standard Atmosphere (ISA) unless otherwise specified. Altitudes are
pressure altitudes.
3.2 Unless otherwise specified, the CTA Certification Basis regulations
are specified in the Aircraft Type Certificate Data Sheet.
3.3 The **Material Redacted** include **Material Redacted**.
3.4 The **Material Redacted** are based on **Material Redacted**.
3.5 Performance, where applicable, is based on a fuel Lower Heating Value
(LHV) of 18.580 BTU per pound and a fuel density of 6.7 lb per Gallon.
4. PARTIES' OBLIGATIONS ACCORDING TO THIS GUARANTEE
4.1 During the Aircraft acceptance to be performed by Buyer in accordance
with Article 7 of the Purchase Agreement, Buyer shall check the
Aircraft performance specified in Article 1 of this Attachment H
**Material Redacted**.
4.2 Embraer's obligations in respect to the guarantees stated in Article 1
of this Attachment H, are limited to Buyer's right to **Material
Redacted**, should it be reasonably verified that such Aircraft during
the acceptance procedure specified in Article 7 of the Purchase
Agreement, cannot comply with the performances guaranteed hereunder
after Embraer has had an opportunity to cure such deficiencies in
accordance with Article 7 of the Purchase Agreement.
4.3 In case during the above mentioned acceptance procedure, it is proven
that the Aircraft performance does not comply with the performances
specified in Article 1 of this Attachment H, **Material Redacted**.
4.4 Upon acceptance of the Aircraft by Buyer, all obligations of Embraer
regarding the Aircraft performance guarantees shall cease.
5. GUARANTEE COMPLIANCE
5.1 Compliance with the guarantees of **Material Redacted** shall be based
on the conditions specified in that Articles, the Aircraft
configuration contained in Attachment "A" to the Purchase Agreement
and the guarantee conditions of Article 3 above.
5.2 Compliance with the takeoff and landing performance guarantees shall
be based on the CTA approved Airplane Flight Manual for the Aircraft.
ATTACHMENT "H"
PERFORMANCE GUARANTEE
5.3 Compliance with the **Material Redacted** shall be established by
calculations based on the comparison mentioned in Article 4.1 above.
5.4 The data derived from tests shall be adjusted as required by
conventional methods of correction, interpolation or extrapolation in
accordance with established engineering practices to show compliance
with the performance guarantee.
5.5 Compliance with the Manufacturer's Empty Weight guarantee shall be
based on information in the appropriate approved weight and balance
manual, or associated document or report.
6. EXCLUSIVE GUARANTEES
6.1 The only performance guarantees applicable to the Aircraft are those
set forth in this document. The performance guarantees set forth
herein are established between Buyer and Embraer and may not be
transferred or assigned to others, unless by previous written consent
of Embraer.
6.2 THE GUARANTEES, OBLIGATIONS AND LIABILITIES OF Embraer, AND REMEDIES
OF Buyer SET FORTH IN THIS PERFORMANCE GUARANTEE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND Buyer HEREBY WAIVES, RELEASES AND RENOUNCES, ALL
OTHER RIGHTS, CLAIMS, DAMAGES AND REMEDIES OF Buyer AGAINST EMBRAER OR
ANY ASSIGNED OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO AIRCRAFT PERFORMANCE.
6.3 The terms and conditions of this performance guarantee do not alter,
modify or impair, in any way, the terms and conditions of Attachment
"C" (Aircraft Warranty Certificate) to the Purchase Agreement or other
express warranties in the Purchase Agreement.
ANNEX 1 TO ATTACHMENT "H" - PERFORMANCE GUARANTEE
**Material Redacted**
**5 pages**